Protecting food presentation by intellectual property can be a very important source of royalties and of the recognition of moral rights of chefs (and cooks). Intellectual property rights are considered fundamental rights according to Article 17 of the Charter of Fundamental Rights of the European Union and of Protocol 1, Article 1, of the European Convention of Fundamental Rights. They are also foreseen as fundamental rights in Article 42 of the Portuguese Constitution. Anyway, we must not forget that one must be careful, especially if we are dealing with copyrights, that last for a long time (as a rule, in the EU, patrimonial rights term is life of the author plus 70 years after the authors death. Moral rights can even have a longer term of protection, not yet harmonized), or tridimensional trademarks, that can last forever (ten years from the application, with infinite renewals of 10 years, for as long as there is serious use). Overprotection can damage free competition and innovation. Authors like RAUSTIALA and SPRIGMAN even consider knockoffs the fuel for innovation and creativity in the food industry (like in other industries).104 There is a long-standing culture of hospitality and a sharing and borrowing approach in the culinary industry. Sharing recipes and cooking methods is common in the culinary world. The recipes, dishes and cooking skills of today are the result of generations and are often part of cultural heritage. Gastronomy is a combination of heritage and innovation. Chefs seem to endorse the idea about sharing and hospitality, which conflicts with the idea of exclusive ownership of recipes and dishes if they are given the credits and are acknowledged in some way. Besides law-based intellectual protection, there is self-regulation created by the culinary industry on which chefs rely.105 Here there are three main principles. The first one is that a chef must not copy other chefs’ innovative recipes exactly. The second one is that if a chef reveals a recipe related to a colleague, that chef must not pass the information to anybody else, mainly colleagues, except if authorized to do so. The third one is that colleagues must give credits to developers of significant recipes and/or methods, and/ or techniques as authors of that information. This last guideline focusses 104 RAUSTIALA, K., SPRIGMAN, C., The Knockoff economy, how imitation sparks innovation, Oxford University Press, New York, 2012, pp. 57-95. 105 See International Association of Culinary Professionals ethical guidelines, available at IACP CODE OF ETHICS (last access on March 9, 2025). Similarly, the Food Blog Alliance has provided guidance in the domain of social rules that apply to food bloggers. See Food Blog Alliance - Your Ultimate Food Community – Share Recipes, Get Answers & Explore Culinary Delights! (last access on March 13, 2025). 257 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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